Critics outraged at rules that limit use of U.S. report likening Calgary company to Keystone Kops

FILE - In this July 29, 2010, file photo, a worker monitors water in Talmadge Creek in Marshall Township, Mich., near the Kalamazoo River as oil from a ruptured pipeline, owned by Enbridge Inc., is attempted to be trapped by booms. Federal investigators are expected to present their findings Tuesday, July 10, 2012 on the likely cause of a pipeline rupture that spilled more than 800,000 gallons of crude oil into the river nearly two years ago. (AP Photo/Paul Sancya, File)

The joint Canadian government panel studying Enbridge Inc.’s proposed $6 billion Northern Gateway pipeline won’t be able to fully assess a U.S. regulator’s findings that the company behaved like the “Keystone Kops” before, during and after the massive 2010 Kalamazoo River spill in Michigan.The panel is refusing requests by intervenors to have the U.S. National Transportation Safety Board’s devastating criticism of Enbridge’s performance to be tabled with the panel and entered into the public registry as evidence.

The panel said the NTSB’s findings can be raised only during the “oral questioning” period for the Northern Gateway hearings that begin this autumn and conclude in December.

However, the NTSB report won’t be viewed as reliable evidence and won’t be considered in the panel’s final ruling, a spokeswoman said Monday.Annie Roy, a spokeswoman for the Canadian Environmental Assessment Agency, said the NTSB reports can only be used as “an aid to cross-examination” during the oral questioning period.

“An aid to cross-examination is generally not considered evidence and cannot be relied on for the truth of its content,” Roy said in an email.“It will not typically be included on the public registry and will not be considered by the panel when making its recommendations. The panel will however consider the answers provided to questions using the aid.”

The statement stunned one of the project’s top opponents, Haisla First Nation Chief Councillor Ellis Ross.

“The Panel is supposed to be looking at potential adverse impacts from the project, including an accident,” Ross, whose lawyer recently sent a letter to the panel calling on Enbridge to fully disclose Kalamazoo River spill information, said in an interview.

“Ignoring a significant analysis of a major pipeline accident involving the same proponent as Northern Gateway does not make any sense.”A prominent critic of the oilsands pipeline proposal called on the panel and Enbridge to find a way to ensure the Kalamazoo River report is fully considered.

“If the NTSB Kalamazoo material is intentionally excluded from the panel’s considerations it is likely there will be no public acceptance of the fairness of the upcoming hearings,” said independent economist Robyn Allan, former chief executive officer of the Insurance Corporation of B.C.

The panel, operated by the National Energy Board and the Canadian Environmental Assessment Agency, revealed its position in separate letters to two B.C. intervenors who asked if they could submit as evidence the NTSB reports made public in July.

The panel responded that a witness cannot submit documents that weren’t prepared “under their direction and control,” since they couldn’t credibly answer questions about the documents “or otherwise confirm their accuracy.”

The Haisla nation’s Ross said Enbridge would “go a long way” in showing good faith to first nations and British Columbians by voluntarily submitting all its information on the Kalamazoo spill, including its evidence provided to the U.S. regulator.

Ross said Enbridge’s spill of an estimated 840,000 gallons of diluted bitumen crude into Michigan wetlands, a creek and the Kalamazoo River – “enough to fill 120 tanker trucks,” according to the NTSB – is directly relevant to B.C. concerns about Northern Gateway.

Enbridge spokesman Todd Nogier said rules prevent the company from submitting the NTSB findings.

“As we are not the authors of the NTSB report, we cannot file it for evidence into the Joint Review Panel process,” he said in an email.

“We would expect to answer questions on the NTSB’s findings during the formal hearings that are taking place this fall. We are also open to including any information requested of us by the JRP through the regulatory review process.”

Allan said official assessments of the environmental impact of the Kalamazoo spill weren’t included in Enbridge’s earlier risk analysis filed with the Canadian review panel.

She said the NTSB’s findings about the role of human error in the Kalamazoo spill, and systemic problems with safety at Enbridge, also need to be considered.

Josh Paterson, a lawyer with the group West Coast Environmental Law, said Roy is underestimating the panel’s authority.

The NEB “has the power to order any party to provide it with any information that it thinks may be necessary to obtain a full and satisfactory understanding of the issues,” he said in an email.

“The board also has the power to dispense with the normal rules of evidence where the public interest and fairness require it. The NTSB report is a document that should definitely be part of the consideration of Enbridge’s proposal, and the Board has the power to make sure that happens, if it wants to.“Whether or not the Board orders the report be produced, the NTSB report is likely to be used as a basis to question Enbridge in cross-examination, and it’s clear that Enbridge will have a great deal to answer for.”

In early July NTSB Chairman Deborah Hersman compared Enbridge employees to the blundering Keystone Kops of the silent movie era. The board’s final report, submitted in late July, was equally harsh in its assessment of Enbridge’s handing of the spill.

“During the investigation, major deficiencies of the company emerged, as discussed in previous sections of this report. These deficiencies led to the rupture, exacerbated its results, and then failed to mitigate its effects,” the NTSB concluded.

"Although these deficiencies involved different elements of Enbridge's operations, and may appear unrelated, taken together they suggest a systemic deficiency in the company's approach to safety.”

While the panel has been constrained in its response to the NTSB reports, the NEB sent a letter to Enbridge chief executive Pat Daniel saying it would inspect the company’s Edmonton control room and planned to “carefully review” the NTSB’s findings.

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FILE - In this July 29, 2010, file photo, a worker monitors water in Talmadge Creek in Marshall Township, Mich., near the Kalamazoo River as oil from a ruptured pipeline, owned by Enbridge Inc., is attempted to be trapped by booms. Federal investigators are expected to present their findings Tuesday, July 10, 2012 on the likely cause of a pipeline rupture that spilled more than 800,000 gallons of crude oil into the river nearly two years ago. (AP Photo/Paul Sancya, File)

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